USCIS Delays Effective Date of International Entrepreneur Rule Citing Public Interest; Rule Likely to be Completely Rescinded, Call to Action

The Department of Homeland Security is temporarily delaying the effective date of the International Entrepreneur Rule. This delay will provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to EO 13767, Border Security and Immigration Enforcement Improvements. The effective date of the regulation entitled International Entrepreneur Rule, published in the Federal Register on January 17, 2017, 82 FR 5238, is delayed from July 17, 2017 to March 14, 2018….

BACKGROUND– It was a stated goal of the Obama Administration to pass comprehensive Immigration Reform. As the Obama Administration drew to a close, it became clear that Congress was not going to act on the former President’s desires, and so, President Obama sought to bypass Congress and expand Immigration on his own accord. On August 31, 2016, USCIS published the International Entrepreneur Notice of Proposed Rulemaking in the Federal Register[1], and on January 17, 2017, it published the International Entrepreneur Final Rule in the Federal Register[2]. (Details of the rule can be found here.) The rule was due to become effective July 17, 2017.

On January 25, 2017, President Trump issued Executive Order 13767, Border Security and Immigration Enforcement Improvements. To ensure current laws regarding parole into the United States are being followed, one section of this Executive Order directs the Secretary of Homeland Security to “take appropriate action” which he deems necessary. After review of Executive Order 13767, DHS decided to delay the effective date of the International Entrepreneur Final Rule, citing public interest. DHS specifically pointed out that if the rule goes into effect July 17,2017, and is subsequently rescinded, then stakeholders will likely experience financial difficulty; DHS stated, “In the event the International Entrepreneur Final Rule is rescinded– which the Department believes is highly likely– individuals who satisfied these and other requirements of the International Entrepreneur Final Rule would quite possibly do so without being able to reap benefits from the rule.” Federal Register Volume 82, Number 131 (Tuesday, July 11, 2017), Rules and Regulations, Pages 31887-31890.

COMMENTARY– There should be no doubt that entrepreneurs making the type of investments contemplated by the International Entrepreneur Rule will create jobs and wealth in the United States. Opportunities for U.S. Nationals and Foreign Nationals alike will become available should the Trump Administration reconsider. Indeed, it is puzzling that President Trump is opposed to this action by the Obama Administration since President Trump touts himself as the best “Jobs President”.

Another issue at play is regarding separation of powers. Had Congress passed an immigration reform statute, President Trump would not be able to unilaterally strike down the law. Since the Congress balked, President Obama acted unilaterally, and now, with a new administration, executive action can be used to repeal former executive action. It is completely within President Trump’s authority to repeal former executive action on his terms. The circumstance at par demonstrates how such lawmaking is unreliable.

Congress is to make laws by passing bills and getting them signed by the President; this process, established by The United States Constitution, creates reliability in our society and certainty in our marketplace. But when Presidents legislate by Executive Order, the American Public is doomed to experience changes, potentially catastrophic changes, with each passing Administration. Without holding congressman accountable, this circumstance will surely become commonplace in the American experience.

CALL TO ACTION—Unless the Trump Administration is enlightened to the desire for economic opportunity and economic freedom, this rule is due to be rescinded. The time for public comment on this proposal is now. Written comments must be received on or before August 10, 2017. You may submit comments, identified by DHS Docket No. USCIS-2015-0006, by any one of the following methods: